The Government Claims Act (Gov. Code, §§ 810 et seq.) generally requires a person seeking to bring a lawsuit against a public entity to first provide a written notice of his or her claim to the public entity no later than six months after the accrual (or discovery) of such a claim for injury to person or personal property. Other claims, such as breach of contract, must be presented no later than one year after the accrual or discovery. If a claim is not timely brought to the public entity, a person is permitted to apply to the public entity’s board for leave to present a late claim. If the governing body denies the application for leave, the person has six months from the date of the board’s denial to file a petition with the court to seek leave to file a court action.

In D.C. v. Oakdale Joint Unified School District, et al. (March 1, 2012) ___ Cal.App.___ (2012 WL 662461), a question was raised as to whether a public entity was required to include the actual date of the board’s denial of leave in its notice of denial. The court of appeals held that notice of denial of leave to file a late claim must include the actual date of denial. Failure to include the date of denial within the notice may prevent a public entity from relying upon the six month statute of limitations defense to preclude a petition for relief to a court after denial of the request for leave.

D.C. attempted to present a late claim to Oakdale Joint Unified School District regarding the District’s alleged mishandling of his behavioral difficulties. On April 28, 2010, D.C. submitted application for leave to present his late claim. On May 10, 2010, the District’s board of trustees denied D.C.’s application.

The District provided D.C. with a rejection notice on June 9, 2010. The rejection notice did not include the May 10, 2010 date of the Board’s denial.

On December 3, 2010, less than six months from June 9, 2010 (the date of the notice of rejection), D.C. filed a petition with the trial court for an order to relieve him of the claims filing requirement set forth in the Government Claims Act. The trial court ruled that the petition was untimely because D.C. filed it more than six months from the Board’s denial on May 10, 2010.

On appeal, the appellate court reversed the trial court’s findings. The court of appeals determined that the obvious intent of the late claim notice provision of the Government Claims Act is to provide the applicant the information needed to file a timely petition with the court to seek leave. As such, the court stated that the notice must contain not only information as to whether the board denied or granted the application, but also the date that decision was actually made.

The court reasoned that without more, an applicant may be misled to believe the board’s decision was made on the date of the rejection notice. In addition, the court determined that the failure to include the date of the board’s denial in the late claim notice would estop a public entity from relying on the six month statute of limitations period for an applicant to petition for relief from the claims presentation requirement.

In light of the court of appeal’s decision, California public entities should, as a matter of course, include the date of their governing board’s decision to reject or grant an application for leave to file a late claim, or they may be estopped from pursuing a statute of limitations defense in court.

If you have any questions regarding this decision or the Government Claims Act in general, please do not hesitate to contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In C.A. v. William S. Hart Union High School District (March 8, 2012) ___ Cal.4th ___ (2012 WL745067), the California Supreme Court held that public entities may be held liable, under a theory of vicarious liability, for negligence in their hiring, retention or supervision of an employee they knew or should have known had a history of inappropriate sexual contact with minors. Further, the Court held that individual administrators and supervisors may also be held personally liable for such negligence.

C.A.was a student at a District high school. C.A. claimed that the District hired a known child molester as a guidance counselor and assigned that counselor to “counsel, advise and mentor” C.A. C.A. alleged that the guidance counselor sexually harassed, abused and molested C.A. multiple times, and that the District knew or should have known that the counselor had previously engaged in such conduct and failed to appropriately supervise, train or discipline the counselor.

C.A.sued the District and the guidance counselor. The causes of action alleged against the District included negligence, negligent supervision, negligent hiring and retention, and negligent failure to warn, train or educate. The District asserted that allegations of negligent hiring and supervision do not apply against a public entity, and the trial court agreed, dismissing the case at the pleading stage. The court of appeal agreed with the trial court.

The Supreme Court, however, rejected the District’s claims that it could not be found liable for negligent hiring and supervision as a public entity. The Court concluded that the District could be liable for the negligent hiring and supervision of the counselor because there was a special relationship between the District’s employees, including administrative staff, and the student. The Court explained that this special relationship arose from “the mandatory character of school attendance and the comprehensive control over students exercised by school personnel.” School districts therefore owe students a duty of care to use reasonable measures to protect students from foreseeable dangers at the hands of third parties acting negligently or intentionally, including other school district employees.

The Court also held that public school administrators owe a duty of care and therefore may be personally responsible for negligence in hiring, retaining and supervising employees. The District argued that the hiring and termination of certificated personnel is the responsibility of the governing board, not individual administrators; therefore, such employment actions are not within the scope of administrator’s employment. The Court rejected this argument and found that administrators have the power to initiate such actions, and therefore are not absolved of liability for their negligence in initiating or failing to initiate charges that could have led to the counselor’s suspension or termination. The Court acknowledged that although individual administrators may be personally liable because the conduct is within the scope of their employment, administrators are generally entitled to a defense and indemnity by the district.

This decision is a reminder that school districts have a special relationship with the students under their control, and administrators have a duty to act reasonably to protect students from foreseeable harm. This may include screening applicants to determine whether they have a history of abusing children and properly supervising, training or discharging employees who may pose a danger to students. Districts must also be cognizant of the requirements of Education Code section 45123, which generally prohibit the hiring of individuals convicted of certain sex offenses, including child molestation.

If you have any questions about this decision or employer liability for employee conduct, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Spring is in the air, and now is the time for planning your summer construction projects. As such, we would like to remind you about two significant changes in the law on public works projects for 2012: the cap on retention and the new prevailing wage compliance monitoring requirements.

Retention Cap

The first significant change is a new cap on the amount of retention withheld from progress payments on a public works project. Senate Bill (SB) 293 enacted a new statute, Public Contract Code section 7201, which provides that for contracts entered into after January 1, 2012, a public entity cannot withhold more than 5% of progress payments as retention. However, the new statute also provides that the public agency may withhold more than 5% on specific projects where the governing body of the public entity or designee finds that the project is “substantially complex” and therefore requires a higher retention amount. These findings must be made during a properly noticed and regularly scheduled public hearing prior to the bid. The findings and the higher retention amount must be included in the bid documents.

New Labor Compliance Requirements

Effective January 1, 2012, new Department of Industrial Relations (DIR) regulations established a Compliance Monitoring Unit (CMU) within the DIR to oversee compliance with labor laws such as prevailing wage requirements. The CMU takes the place of third party Labor Compliance Programs. To finance these activities, the regulations also provide for the collection of a mandatory fee to be imposed on all construction projects financed by any state-issued bond, in addition to certain design-build projects.

Although the new regulations shift primary labor compliance oversight from local public entities to the CMU, public agencies are cautioned not to simply turn a blind eye to a contractor’s compliance with prevailing wage requirements. The new CMU regulations do not absolve owners of their existing statutory duties to “take cognizance of violations” and “report any suspected violations” of prevailing wage requirements.

Public agencies are specifically required to do the following on public works projects that are subject to DIR monitoring and enforcement:

1. Include language in the bid invitation and contract that the project is subject to monitoring and enforcement by DIR, including the obligation to submit certified payroll records directly to the CMU.

2. Provide notice of the project to DIR using the PWC-100 form. This is required only for projects subject to CMU monitoring (see Cal. Code Regs, tit. 8, § 16451), but DIR encourages awarding bodies to send these notices for all public works projects.

3. Follow instructions from the Division of Labor Standards Enforcement (DLSE) to confirm registration of the project in the CMU’s electronic certified payroll reporting (“eCPR”) system.

4. Require contractors and subcontractors to submit certified payroll reports to the CMU at least monthly using the eCPR system.

5. Post the physical notice required by California Code of Regulations, title 8, section 16451 (d) at each job site (or require the contractor to post the notice). This notice provides payment information to all workers and informs them that the public works project is subject to monitoring and investigative activities by the CMU.

6. Comply with any CMU notices requiring contract payments to be withheld due to a contractor’s failure to submit proper certified payroll reports.

8. Cooperate with the CMU and DLSE in any investigation of suspected violations and withhold contract payments in accordance with any lawful order by DLSE.

It is expected that additional information will be provided by DIR, including specifics regarding CMU services. Lozano Smith will continue to monitor these developments and provide further information when it becomes available.

Lozano Smith’s construction documents are currently being revised to address these new developments. If you have any questions regarding your public works projects or construction matters in general, please contact one of our eight offices located statewide or consult our website.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

For the past several school years, California school officials have grappled with the appropriate response to students wearing bracelets to school with provocative slogans supporting cancer awareness. Since April 2011, two different federal district courts in Pennsylvania and Wisconsin have reached different conclusions on whether the First Amendment prohibits a school from barring students from wearing these edgy accessories. The rulings, despite their conflicting results, provide some guidance to school officials on how to address this free speech conundrum.

The Keep a Breast Foundation, a nonprofit organization that promotes detection, prevention and treatment of breast cancer distributes bracelets reading “I Love Boobies” and “I ♥ Boobies! (Keep a Breast).” In 2011, a U.S. district court in Pennsylvania ruled a school district could not enforce a ban on middle school students wearing “I ♥ Boobies! (Keep a Breast)” bracelets. (H. v. Easton Area Sch. Dist. (E.D.Pa. Apr. 12, 2011) Case No. 10-6283.)

The court looked at whether school officials had the authority to ban the bracelets under the U.S. Supreme Court’s student speech decisions Bethel School District No. 43 v. Fraser (1986) 478 U.S. 675, and Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503. The Fraser decision permits school officials to restrain student expression that is lewd, vulgar or is otherwise plainly offensive. In this case, the court determined that Fraser did not apply, rejecting the assertion that the word “boobies” is vulgar in any context, and especially when the bracelets are designed to raise breast cancer awareness. The Tinker decision allows a school district to restrain speech causing a substantial disruption of school activities. In the Pennsylvania case, the court ruled that the district had offered no evidence that the bracelets caused a substantial disruption. Therefore, the court issued a preliminary injunction barring the district from prohibiting the bracelets at school.

However, in February 2012, a U.S. district court in Wisconsin denied a student’s request for a preliminary injunction to prevent a middle school principal from banning students from wearing “I ♥ Boobies! (Keep a Breast)” bracelets. (K.J. v. Sauk Prairie Sch. Dist. (W.D. Wis. Feb. 6, 2012) No. 11-622.) A principal banned the bracelets unless students turned them inside out so that the slogan was not visible. The principal believed that the bracelet’s message constituted sexual innuendo which violated the school’s dress code.

The court concluded that, under Fraser, schools are permitted to prohibit vulgar or offensive speech that is related to, but falls short of, being profane, obscene or indecent speech. The court also gave substantial deference to officials’ decision to prohibit the bracelets, reasoning that existing case law supports such action where the bracelets amounted to a positive social statement reasonably interpreted as vulgar or offensive in the middle school atmosphere.

Easton Area School District and K.J. highlight how courts may respond differently, even when presented with very similar facts, to the regulation of provocative apparel. The school district has appealed the court’s decision in Easton Area School District, which may result in clearer guidance on this issue from the Third Circuit Court of Appeals. Until then, schools should glean what they can from these federal rulings, seeking to balance student speech rights against the interests in a disruption-free educational environment and administrator discretion to determine age-appropriate speech suitable for school.

Because of the known cancer-awareness purpose of the bracelets’ message, it may be difficult to justify banning them on the basis that they constitute vulgar speech under Fraser. The age of students, however, is relevant. For example, while the courts split on whether the bracelets were objectionable under the Fraser standard in the middle school setting, the bracelets may be more objectionable in an elementary school, and less objectionable in a high school setting.

Schools may also measure whether the bracelets are subject to regulation under Tinker’s substantial disruption standard. Absent actual disruption to the educational environment caused by the bracelets, the Tinker standard will generally not validate bans on the apparel. There is also an open question whether the bracelets may be regulated if disruption is caused not by the students wearing the bracelets, but other students’ reactions and behavior in response to them. Officials should proceed with caution if disruption is caused by the reaction of others to the bracelets, as opposed to the students wearing them.

Finally, California schools must also take cues from the student speech rights embodied in Education Code sections 48907 and 48950. Section 48907 protects students’ speech right to wear buttons, badges and other insignia, and while limiting speech that is “obscene” or causes a substantial disruption, does not expressly limit “vulgar” speech. And, on its face, section 48950 purports to protect high school students from discipline solely on the basis of speech, that when engaged in outside of campus, is protected under the First Amendment.

If you have any questions or concerns regarding the issues impacting regulation of Keep a Breast’s cancer awareness bracelets, or any other student free speech issue, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The California Third District Court of Appeal issued a decision in Stockton Teachers Association CTA/NEA v. Stockton Unified School District (March 1, 2012) ___ Cal.App.4th___ (2012 WL 663158) that could have a wide-ranging impact on how districts classify and terminate employees hired to serve in categorically funded programs. While we think the case was incorrectly decided and hope that the California Supreme Court will grant review of the case, as it stands now, the case could have implications for certificated layoff and temporary employee release processes in the current school year.

I. Factual Background

Like many school districts in the state, Stockton Unified School District (“District”) had a practice of classifying certificated employees hired to work in categorical programs under Education Code 44909 as temporary employees. These categorical employees signed an agreement with the District which acknowledged their status as temporary employees. For the 2008-09 school year, the agreement stated that these employees would be terminated by a specified date or on “the date on which the funding for the categorical program is no longer available, whichever occurs earlier.” Under the agreement, the District reserved its right to dismiss the employees as temporary “at any time during the period in this paragraph based on the determination of the governing board.”

On March 4, 2009, the District’s governing board adopted a resolution reducing or eliminating particular kinds of certificated services for the 2009-10 school year. The District sent “precautionary” notices to each of the temporary employees serving in categorically funded positions. In response to the precautionary notices, nine categorical employees who were classified as temporary requested layoff hearings. During the layoff hearing, these nine employees argued that they had been inappropriately classified as temporary employees.

II. Layoff Decision

Prior to the layoff hearings, Stockton Teachers Association (STA) objected to the inclusion of temporary employees in the layoff proceeding and filed a motion arguing that the Administrative Law Judge (ALJ) lacked jurisdiction to expand the proceedings to include temporary employees. The ALJ dismissed the motion and ruled that although section 44955 expressly authorizes layoff proceedings for probationary and permanent employees, the ALJ had jurisdiction to determine the classification of an employee, including a temporary employee, once the employee has requested a hearing under section 44949. The ALJ further held that the District was not prohibited from entering into temporary agreements with employees working in categorically funded programs under section 44909. The governing board of the District adopted the ALJ’s decision.

III. Trial Court Decision

STA appealed the ALJ’s decision to the trial court, arguing that the proper classification of teachers assigned to categorically funded programs under section 44909 is probationary rather than temporary. STA argued that the temporary teachers were improperly included in the layoff proceeding and that the ALJ’s findings were not supported by the evidence. The trial court held that the categorical employees were properly classified as temporary employees and could be released as such. STA appealed the trial court decision to the court of appeal.

IV. Court of Appeal Decision

On appeal, STA argued that the Legislature’s intent in creating section 44909 was for categorical employees to be classified as probationary, not temporary, employees. The court focused on two issues: the classification of employees serving in categorical positions and the release of such employees. After analyzing the language of section 44909 with respect to other classification provisions in the Education Code, the court of appeal held that the classification of employees working in categorically funded positions depends upon the duration of their employment. The court concluded that a district may classify categorical employees as temporary only if they are: (1) hired for the term of a categorically funded project and (2) terminated at the expiration of the categorically funded project for which they were hired. Otherwise, the court concluded that the categorical employees must be treated as probationary, with the same seniority and layoff rights afforded such employees.

In reaching its conclusion, the court noted that the Education Code authorizes the classification of employees as temporary only in “certain narrowly defined situations” and that probationary status is the “default classification” for employees. (California Teachers Assoc. v. Vallejo City Unified School Dist. (2007) 149 Cal.App.4th 135.) According to the court, the purpose of the state’s classification scheme is “to limit rather than enlarge the power of school districts to classify teachers as temporary employees.” (Bakersfield Elementary Teachers Assoc. vs. Bakersfield City School Dist. (2006) 146 Cal.App.4th 1260.)

With respect to the termination of employees serving in categorical positions, the court determined that pursuant to the specific language of section 44909, categorical employees may be terminated without regard to the requirements for permanent and probationary employees only when they are terminated “at the expiration of the contract or specially funded project….”

In this case, the District argued that the term “contract” referred to the contracts between the temporary employees and the district, and that the termination date listed in their agreements triggered the “expiration of the contract” under section 44909. The court disagreed, however, and determined that the term “contract” refers to the contract between the agency providing the categorical funds and the District.

According to the court, a categorical employee may be terminated as a temporary employee “at the termination of the categorically funded program or at the end of the contract with the public or private agency.” The court stated, “What a district may not do is hire a person for more or less than the term of the contract or project, and treat such a person as a temporary employee.” If the employee is terminated before the expiration of the agency contract or the categorical funds, then the employee must be treated as a probationary employee and presumably terminated through either a midyear termination process or a probationary nonreelection process. The court noted that “this interpretation allows school districts the flexibility to operate special programs without having a surplus of probationary or permanent teachers when the special program is terminated.”

Once the court established the test for determining the classification and termination of categorical employees, the court reviewed the evidence presented by the District in its layoff hearing. The court concluded that, in order to justify the classification of the categorical employees as temporary, the District was required to: (1) show that the employees were hired to perform a categorically funded services; (2) identify the particular contract or project for which services were performed; (3) show that the particular contract or project had expired; and (4) show that the employee was hired for the term of that contract or project. Because the District failed to provide sufficient evidence of these facts, the court ruled that all nine of the employees were probationary, not temporary, employees.

V. Impact of Stockton on Current Layoff Proceedings

We disagree with the court’s analysis of section 44909 and understand that the District may appeal the decision to the California Supreme Court. However, as a published decision, it potentially has immediate and long term impacts on certificated temporary employee releases and layoffs.

In light of Stockton, districts should consider taking the following steps to determine how, if at all, the decision impacts district practices and pending actions such as layoffs and temporary employee releases:

1. Examine your current list of temporary employees to determine whether the list includes categorical employees.

2. For any certificated employees serving in categorical programs who are classified as temporary, identify the specific categorical program or contract under which the employee serves.

3. Determine the status of any categorical funds or contract to determine when each categorical program began and will expire due to the end of the agency contract or when funding will be eliminated.

4. Determine whether, in light of the information gathered in paragraphs 1-3 above, the district needs to take any further action relative to the categorical temporary employees, such as potential status changes and nonreelections for categorical employees converted to probationary, with the understanding that nonreelection decisions cannot be used in lieu of a layoff.

5. Determine if reductions in additional particular kinds of services may be necessary as a result of your evaluation of the status of certificated employees serving in categorical programs.

6. Going forward, districts should review and evaluate the language of their temporary employee contracts to determine if any changes are necessary in light of Stockton.

The Stockton decision leaves many questions unanswered, such as whether a categorical employee under a multi-year contract or an employee who is hired after the start of a categorical program’s contract may be classified as temporary. With March 15th just around the corner, it is very important that you work with legal counsel as soon as possible to assess what impact, if any, this decision will have on your practices relative to categorical employees, and the implications of those practices on your current certificated layoffs and temporary employee releases.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.